The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-07-17
velope. and the ballots and papers


therein and that, after said envelope has been
closed aud sealed By hip in the presence of the
judges and clerks he had not suffered or per-
fmitted any person to break the seal open said
envelope, touch or tamper with said ballots
papers and that person had broken such seal
or opened said envelope to his said knowledge
which said oath shall be filed in said Clerks Of
fee with the other election papers (Sec. Alb J
BY Section AHA it is made the duty of the
clerk TO securely keep said envelope. so sealed,
with the ballots and papers therein, in the same
condition it was received By him from the in
spector. in his Office unless opened by said in
spector in the presence of che board of CANVASS
ers as herein providedl for the period of six
months In the event the election is contested
the clerk must preserve these papers so long as
the contest is undetermined. subject to the or
der OF the court trying the contest
1t thus appears that there are two sets of
papers for the custody of which the statute
makes provision. Those which are placed in a
paper bag and sealed mp evidently the best
and primary evidence of the popular will,
pressed at the election, and IN the of con-
test as to who was elected, they conclusive
as TO the result of the election. Reynolds
The State, GIL Ind, 422 ct seq
The other set OF papers required to be "de-
posted" with the inspector, and which go uti-
mately to she board of canvassers, who
estimate the certificates, poll lists and tally pa
pers returned by the respective members of that
board, are not required to be sealed up: but they
constitute very important papers in reference to
the election to which they relate They are
prima facie evidence as to the result of
tne election. They are conclusive before mere
boards of canvassers, and not assailabe
except in a contested election case. Moore
Kesslsr, 59th Ind. 1872 Those papers consti-
tute the basis upon which the proper boards
ascertain in the first instance who are elected to
fill county Offices and State Offices, and also Rep
resentatives in the Congress of the United
States Indeed the returns of electors for Presi-
dent OF the United States are based upon these
papers. It is very plain that the trainers of the
statutes of Indiana had in their minds
to throw around those papers every safeguard
necessary to protect the expression OF the popu-
lar will against fraud. Now it is insisted with
great earnestness on the part OF the learned
counsel for the petitioner that the statute has
omitted any provision to the custody of those
papers from the time they are deposited" with
the inspector until they are returned by each
member of said board at their meeting on the
Thursday next succeeding the election; secondly
IL is claimed that the inspector, after receiving
the certificates may part with their possession
before the meeting of the board without vioat-
ing his duty, provided he did not intend by such
surrender to affect the result of the election. In
support of this position the attention of the
court is invited TO certain authorities which an
nource the old familiar rule that penal statutes
are to be construed strictly. There is some
ground to say that these statutes of Indiana
under consideration only regulate the conduct Of
elections and define the dutiess of officers
OF the election, ana are. therefore not in any
proper sense penal statutes; but I incline to
think that for the purpose of determining
whether the defendants have committed
DffeEse against the United States. those statutes
are to ue taken in connection with the statutes
of the United States, and. therefore, the rule
referred to has proper application in the case
before us u..s The rule referred 20, gen.
to be strictly construed. Mr..
Dwarris, in his treatise statutes, says: 1.-THE
general words Of penal statute shall be re-
strained for the benefit of him against whom the
penalty is inflicted" Counsel invited atten-
tion to a decision Of the Supreme Court of the
United States, in which that court says that this
rule is as old construction itself The court
: in that case said lit is said that notwithstand-
ing this rule, the intention of the law maker
must govern in its construction of penal as well,
az lie III ia
not a new, independent rule, which subverts the
old. 1t is a modification of the ancient maxim,
and amounts to this, that though penal laws are
TO be construed strictly. they are to be con-
strued strictly as to defeat the obvious inten-
ton of the Legislature The maxim is not to be
so applied az to narrow the words of the statute
to the exclusion of the cases which those words,
in their ordinary acception, or in that sense in
which the Legislature obviously used them,
islature is to be collected from the words they
employ"
There is certainly nothing in this language
from which l would express any dissent. 1t is
In line with repeated declarations of that court
In other In the United States Morris,
18th Peters. 464. it was said: I'm expounding
penal statute. the court certainly will
not extend it beyond the plain meaning
of it's Words for it has been long and well
settled, that such statutes must be construed
strictly. Yet the evident intention OF the Leg
islature ought not TO be defeated by forced
and overstrict construction We to ascer-
tain the true legislative intent of the words
used, and that sense being once aseertaiued
courts of justice bound TO give effect to that
intent. and are not at liberty TO fritter it upon
metaphysic niceties' Mr.. Justice Story in
Ist Gaiiison, ia. said: "We are undoubtedly
bound to construe penal statutes strictly and not
to extend them beyond their obvious meaning by
strained inferences On the other hand, are
bound TO interpret them according to the mani
fest import of the words, and to hold all cases
which are within the words and the mischiefs
to be within the remedial influence of the
statute" In Commonwealth vs. Loring, 9th
Pickering. BIZ, it was well said. that while it
is laid down as a general rule that penal
statutes admit of no latitude OF construction and
are to be taken strictly, be the consequences
what they may, yet ''the rule does not exclude
the application OF common sense to the terms
mi de of in the act, in order to avoid abb
surdity which the Legislature ought not to be
presumed to have intended"
The learned author, after citing the to
which counsel for the prisoner refers and many
others, says TINT the more correct version Of the
doctrine appears to be that penal statutes ''are
to be fairly construed and faithfully applied
cording to the intent of the Legislature without
unwarrantable severity the hand,
equally uniustifable lenity on the other: in
of doubt the courts inclining to mercy"
EGiving the rule in question its fullest opera
ton, leaning at all times to the side of mercy
where the liberty of the citizen is involved, I
entertain doubt that the statutes in question,
fairly construed. according to the obvious inten-
ton of the Legislature, do impose upon the in
spector who receives the tally papers, lists Of
vosers and certificate when the votes
are counted, the duty of keeping those documen
n his own custody, and not parting with them
except when he assemblies with other inspectors
after the election to canvass and estimate the
certificate poll lists and tally papers returned by
each member of that board. 1t is impossible
that any inspector could conceive it to be in the
line OF his duty. consistent with his
duty to surrender these important
documents to any individual They are "de-
posted" with him a sworn officer of the law
The word deposit" implies the duty of keeping |
such papers safely andi returning them at the |
time indicated by the statute
In the argument counsel made the inquiry |
whether the insp would violate his duty if |
he deposited the documents in bank for safe |
Keeping That might depend on the mode of |
deposit If they were deposited in box of his |
own, to which he alone had access, they would |
be considered in law in his custody. Other |
cases of similar character might verv well be |
imagined, in which the inspector would not |
be held to have parted with the custody |
In violation of the provision of the statute
rha.a L. Ala nxaA INN icafi inn